The “New Day in New York” Meets The Old Cops

The breaking news is that Bill deBlasio kept his campaign promise. From the New York Times:

New York City will settle its long-running legal battle over the Police Department’s practice of stopping, questioning and often frisking people on the street — a divisive issue at the heart of the mayoral race last year — by agreeing to reforms that a judge ordered in August, Mayor Bill de Blasio announced on Thursday.

The City has moved to drop the 2d Circuit appeal that gave rise to the infamous Shira Scheindlin ouster ruling, the police unions’ motion to intervene to prevent the City from settling the case and the Bloomberg administration’s last-ditch effort to gets its brief in ahead of schedule to force the issue. As Jacob Gershman at the WSJLawBlog notes, the deal is in the works.

Jeffrey Friedlander, the acting lead city attorney, filed a motion with the Second U.S. Circuit Court of Appeals on Thursday requesting that the city’s appeal of the ruling be kicked back to the district court for 45 days to amend one aspect it.

The city wants the monitorship to expire in three years, after which time the responsibility of monitoring the NYPD’s stop-and-frisk tactic will fall to the city’s inspector general, a position created last year by the City Council that has yet to be filled.

Not for nothing, but this is exactly what I predicted during interviews that day after deBlasio was elected. And naturally, the New York Times editorial applauds the move with the most breathless praise:

Mayor Bill de Blasio closed a divisive chapter in New York City history Thursday when he announced that his administration had reached an agreement with the civil rights lawyers who challenged the Police Department’s abusive and racially discriminatory stop-and-frisk program in federal court.

[Mayor deBlasio’s newly appointed police commissioner, William] Bratton, who has made good community relations a cornerstone of his career, acknowledged as much in his remarks. “We will not break the law to enforce the law,” he said. “That’s my solemn promise to every New Yorker, regardless of where they were born, where they live, or what they look like. Those values aren’t at odds with keeping New Yorkers safe — they are essential to long-term public safety.” Mr. de Blasio spoke movingly of the toll that the program has taken on the social fabric and on minority youth, many of them deeply alienated by tactics that have presumed them criminal until proved otherwise.

So where de we serve the papers if Bratton doesn’t keep his “solemn promise”? The problem with Bratton’s rhetoric is that he’s already been busy talking up his effectiveness.

In an interview on CBS [on January 9, 2014], Mayor Bill deBlasio’s new police commissioner (as opposed to Rudy Giuliani’s old police commissioner) Bill Bratton made three points abundantly clear:

1. The NYPD Stop and Frisk program will continue, though he says cops need better training (because that reasonable and articulable suspicion part is way too hard to grasp).

2. The reason the program disproportionately impacts minorities is because that’s where the crime is.

As Rudy Giuliani found out, Bill Bratton never met a microphone he didn’t like. It’s not that he’s not good at turning a phrase, like “we will not break the law to enforce the law,” which are the right words at the right time, but saying so, particularly in light of what he said a month earlier, doesn’t make it so.

It’s understandable that there is appreciation of Mayor deBlasio’s keeping his campaign promise. No one can ever be sure that a politician, once elected, will do as he said he would. The hat sits tight on the head of responsibility, and sometimes forces the brains to squish out the ears. So kudos to the Mayor for keeping his word. It’s a big deal.

Similarly, the remedy fixed by Judge Scheindlin was directed, solid, and yet nuanced so that it didn’t impair the ability of the police to do their job. With Peter Zimroth as monitor, it’s not like there is an unfriendly face watching benevolently down on the cops. Zimroth was formerly Corporation Counsel for the City of New York, and a former Assistant United States Attorney and Manhattan Chief Assistant District Attorney. He’s got the law enforcement chops for the job, with his only black mark being that he was long ago law clerk to Supreme Court Associate Justice Abe Fortas.

But before anyone builds a statue for deBlasio or Bratton, let’s see if the practice matches the rhetoric. It will be incredibly difficult to change the culture of the largest standing army in the United States, to return “stop and frisk” from an abhorrent policy to its original constitutional underpinnings of the freedom to be left alone in the absence of real “reasonable suspicion.”

In the meantime, there remains one more thing that needs to be done, and that’s an apology from the 2d Circuit panel for its smearing of Judge Shira Scheindlin, who showed the fortitude and integrity of taking on this massive paramilitary apparatus and calling it what New York City’s mayor and police commissioner now concede it to be: Unconstitutional.

As hopeful as young minority men may be that they can walk the streets of their city again unmolested, the outrageous tarring of Judge Scheindlin remains an open wound that needs to be healed. Let’s not throw a party without inviting the judge who gave us a reason to celebrate.

You note approvingly that the executive branch of NYC (the mayor and the police commissioner) have arrived at the conclusion that the stop and frisk policy of NYC is “unconstitutional.” As much as you are against the present policy, are you sure you want to go down that path ? – i.e., that it is up to the executive branch to decide what is constitutional or not? (Or, that these constitutional issues should be left up to elections?) It seems to me that the those on the left who started this crusade against stop-and-frisk were the ones who began this court fight, believing this type of constitutional issue should be litigated in court (and aren’t we always lectured about how constitutional issues like this must be decided by “the courts” and not subject to the whim of whoever has been elected recently?) So, the left starts this fight in court, initially gets a favorable decision, but then loses the next round – with the Second Circuit blocking the implementation of the decision, and criticizing the trial judge for an appearance of impropriety (and probably on its way to reversing its decision) – and now you guys want to take your ball and go home. Yes, De Blasio was elected, and elections have consequences, but why not just argue that his views are right on policy grounds and leave it at that? What I find amazing is that DeBlasio and his supporters, the NY Times, etc. tout the findings of “the court” when those very rulings were called into question by the appellate court. If you refuse to continue with the court challenge you yourself started because you suffered a setback in court and afraid of what a higher court will rule, you don’t get to cite to what “the court” did. And when, in the future, public policy is against your position, you don’t get to then claim that these issues should always be left to the third branch.

I marvel at how you manage to miscomprehend in ways no reasonably intelligent person would believe every concept you touch upon. You are a savant, giving everyone who has the misfortune of reading your comment a headache and murdering brain cells with abandon. Well done. It’s a gift.

Scott H. Greenfield

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